Lee v Chartered Properties (Building) Ltd

The adjudicator's delivery of his decision three days after the final day for him to reach his decision constituted a failure to comply with his obligation to deliver it to the parties as soon as possible after reaching it under paragraph 19(3) of the Scheme for Construction Contracts

Paragraph 19(3) of the Scheme for Construction Contracts provided that the adjudicator was to deliver a copy of his decision to the parties as soon as possible after he had reached it. Akenhead J held that the adjudicator’s delivery of his decision three days after the final day for him to reach his decision constituted a failure to comply with his obligation to deliver it to the parties as soon as possible after reaching it under paragraph 19(3). The adjudicator’s decision was therefore unenforceable by the contractor against the homeowner.

The judge in giving his reasons for this decision pointed out that whilst the contractor’s representative said to the adjudicator that he had no objection to the adjudicator having extra time for delivering his decision after reaching it, there was no agreement or even any expressed non-objection by the homeowner and no evidence that the homeowner actually saw the adjudicator’s e-mail on that day asking for relief or as to why three days or 74 hours were required by the adjudicator to deliver his decision. It was a not unreasonable assumption that the adjudicator could have arranged for prompt typing of his decision and set aside time for proofreading with a view to communicating the decision within a very much shorter period than three days, even though he reached his decision on a Friday and the weekend was looming. There was no obvious good reason why the decision could not have been communicated on the day in question with some effort and application or why there was no obvious explanation why virtually the whole of the day when the decision was sent out was required before the decision was sent out. The decision itself suggested by its use of the words "made [on the day in question] under my hand" that the adjudicator had actually drafted the decision by that time. If the decision had been drafted in long hand (which would be unlikely and somewhat unusual), there was no good reason why it could not have been faxed or scanned and e-mailed over to the parties taking into account that the large bulk of the communication between the parties had been by e-mail.